State v. Bunk

• Decision Date: 03 February 1949
• Citation: 63 A.2d 842
• Parties: STATE v. BUNK et al.
• Court: New Jersey County Court

63 A.2d 842

STATE

v.BUNK et al.

Essex County CourtNew Jersey.

Feb. 3, 1949.

Frederick C. Bunk, Robert K. Jellison and Clarence Van Dorn Smith were indicted for an offense and defendant Jellison moves for an order directing the prosecuting attorney to produce designated documents before the court for inspection and examination and defendant Smith seeks an order directing issuance of subpoenaes duces tecum to specified persons.

Motions granted in part and denied in part in accordance with opinion.

C. William Caruso, of Newark, for the State.

James L. McKenna, of Newark, for defendant Bunk.

Louis Auerbacher, Jr., of Newark, for defendant Jellison.

Edward J. Gilhooly, of Newark, for defendant Smith.

FRANCIS, Judge.

On this motion, the defendant Robert Jellison seeks an order directing the Prosecuting Attorney for the County of Essex to produce before the Court for inspection and examination by him the written statements made by him and the codefendants to the police authorities subsequent to their apprehension on the charge laid in the indictment, and also the reports of medical examinations of him made on behalf of the State.

This order is sought in furtherance of a duces tecum subpoena served on behalf of Jellison on the Prosecuting Attorney which requires the production of the same documents.

A co-defendant, Clarence Smith, likewise seeks an order directing the issuance of subpoenas duces tecum to the following persons:

(1) W. E. Kulp, Superintendent of Rahway (Bordentown) Reformatory, requiring the production of all records of the Reformatory, including physical and mental examination reports, relating to Smith.

(2) D. Knowlton Read, Warden of Caldwell Penitentiary, requiring the production of all records, including physical and mental examination reports, relating to Smith during the period when he was confined there.

(3) Duane E. Minard, Jr., Prosecutor of the Pleas, requiring the production of all firearms and bullets relating to the crime charged, for inspection and test on behalf of Smith, the statements or confessions of Smith and the other defendants, the statements or record of oral statements made by any person interviewed on behalf of the Prosecutor in connection with this indictment and the reports of all physical and mental examinations of Smith and the co-defendants made on behalf of the State.

These motions are made pursuant to Rule 2:5-8(c) of the Rules of Criminal Practice which provides as follows: ‘A subpoena may also command the person to whom it is directed to produce books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, or objects or portions thereof, to be inspected by the parties and their attorneys.’

The State contends (1) that the rule in question was never designed to permit a fishing expedition into its files by a defendant under indictment, and (2) that in any event in the enactment of this innovation the Supreme Court had in mind the old notice to produce practice with its attendant risks. Particularly, the argument is that if the documents and objects referred to in the subpoena are produced and inspected by the defendant that they are automatically in evidence for trial purposes.

These new rules generally were adopted to liberalize the practice, to avoid unnecessary delays in the trial of causes, and to render more expeditious and efficient the administration of justice. They were never intended to result in such drastic consequences as those contended for in the second point raised by the State. If such an argument were recognized as the law it would mean, for example, that if a defendant were permitted to inspect his confession in advance of trial it would become part of the evidence at the trial in spite of any violation of his constitutional protection against self-incrimination or of his guaranty of due process.

Under the old practice when a duces tecum subpoena was served and books and documents were produced at the trial in response to its mandate, on many occasions much time was lost in examining them and culling from their contents the portions thereof which were pertinent. So, this new rule was fashioned, at least in part, to eliminate such delay and confusion by permitting a preview under the supervision of the Court. Further, it was designed to enable a party adequately and efficiently to prepare in advance of the trial the part of his case which depended on documentary evidence in the possession of others. See Tentative Draft Comment page 52.

The defendants argue that this proceeding ought to be considered in the same light as a discovery proceeding under the Rules of Civil Practice. But no such discovery procedure has been established in the criminal practice, and undoubtedly because it is not feasible. The element of reciprocity is present in the conduct of civil causes. Each party may examine the other, force disclosure of material evidence and thus reduce to a minimum the element of surprise or chance in the trial. In criminal causes no such reciprocity is possible. The State could not examine the defendant before trial without his consent, nor could any rule of court force such examination.

Much was said on the argument about both the civil and criminal rules in the Federal Courts. The rule involved here is a verbatim copy of Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and there is no doubt that the Federal Rules provided the pattern for those adopted in New Jersey. However, in this very connection it is interesting to note that under Federal Criminal Rule 16 a defendant under indictment may apply for an order, and the court may direct the government attorney to permit him: ‘to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant * * * upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.’

This rule was not included in our Tentative Draft and it was not adopted by the Supreme Court in the final draft. The omission could not have been an oversight. It must have been deliberate, but the reason can only be guessed at for the present. Conceivably the feeling was...